Synopsis

Claimant's motion seeking in camera examination of alleged assailant's
institutional file and release of information contained therein tending to prove
notice to State of assailant's dangerous propensities granted except as to
records containing medical or psychiatric information relative to diagnosis and
treatment of such individual. State to provide record within 45 days of service
of decision and order.

Claimant's motion for disclosure of his assailant's psychiatric records and
institutional file following an in camera inspection by the Court and the
anticipated redaction of privileged matter is granted to the limited extent set
forth below. The claim seeks to recover money damages for personal injuries
allegedly sustained by claimant on March 31, 1997 at Great Meadows Correctional
Facility, Comstock, New York when he was attacked by a fellow inmate identified
as P. Perkins (DIN # 95 A 8588). The claim alleges that inmate Perkins attacked
claimant with a weapon causing an 8 inch cut to claimant's face and neck for
which he seeks $225,000.00 in damages. Claimant alleges that his assailant was
a dangerous individual whose vicious propensities were known or should have been
known by DOCS personnel and that he, the assailant, should have been segregated
from the general prison population. The claim alleges that the State was
negligent in failing to take adequate precautions to prevent the carrying of
weapons by inmates, in failing to adequately monitor inmate movement and in
failing to intervene and/or failing to protect claimant during the
attack.

On the motion claimant's attorney alleges that the assailant's psychiatric
records and security status records maintained by DOCS from the date of his
initial incarceration through March 31, 1997 are material and necessary for the
prosecution of this matter. Claimant's attorney requests that Perkins' entire
DOCS file from the date of his placement with DOCS to the date of the incident
together with the records of disciplinary or criminal charges resulting from
this incident be provided to the Court for an in camera inspection and
judicial determination as to what portions should be provided to claimant's
attorney.

The defendant opposed the motion primarily on the grounds that pursuant to
Mental Hygiene Law § 33.13 (c) (1) clinical records of patients shall not
be released except "pursuant to an order of a court of record requiring
disclosure upon a finding by the Court that the interests of justice
significantly outweigh the need for confidentiality..." Defendant's attorney
alleges that claimant has not demonstrated a good faith basis for the belief
that the alleged assailant has any psychiatric history or any condition relevant
to the incident giving rise to the claim. Defendant further sought to limit
disclosure of disciplinary records to one year or less prior to the incident and
to prevent disclosure of information pertaining to the alleged assailant's
medical, dental or personal property records which may be contained in the
alleged assailant's complete institutional file.

The law is settled that records concerning an inmate's behavior during
confinement may be disclosed as necessary and material to the prosecution of a
claim alleging the State was negligent in failing to segregate an attacker with
a known dangerous propensity (Wilson v State of New York, 36 AD2d 559).
After Wilson the rule evolved that in cases where a claimant seeks
medical records of an alleged assailant from the State, he or she is entitled to
receive records relating to the assailant's criminal record and behavior in
confinement prior to the assault but is not entitled to records pertaining to
the inmate's prognosis and diagnosis (see, Homere v State of New
York, 41 AD2d 797). Stated differently, claimant is entitled to discover
non-medical information, including institutional disciplinary records,
contained in the alleged assailant's institutional file which "relates to any
prior assaults or similar violent behavior, to aid plaintiff in establishing
knowledge on the part of the defendants" (Moore v St. John's Episcopal
Hosp., 89 AD2d 618, 619).

The determination of what information shall be disclosed is to be made by the
Court after an in camera inspection of the records (Villano v State of
New York, 127 Misc 2d 761; Brier v State of New York, 95 AD2d 788).
In conducting such an inspection the Court shall be guided by the Appellate
Division, Second Department's decision in Brier v State of New York,
supra, which said:

In the process of redacting the hospital record the court shall exclude
therefrom (1) all reports and references concerning physical and psychological
examinations, the results thereof, prognosis, diagnosis and treatment, (2) any
entry where a doctor, nurse or other medical personnel refers to a prior assault
or act of violence between the patient and another as a starting point for that
entry, or such entry that is made as the basis for their interviewing and/or
treating the patient and (3) any entry by medical personnel concerning treatment
of the patient for the specific incident which was the basis of his referral to
them. The court shall include in the redacted copy of the hospital record to be
furnished to the claimants (1) all reports and references made, regardless of
author, concerning any assaultive or violent behavior between the patient and
another, including the time and place and surrounding circumstances, the date
the information came within the knowledge of defendant, and any subsequent
action, such as a transfer within the institution taken by institution
personnel, the police department, the courts, etc., where such action was
predicated upon the aforesaid behavior, and (2) the number of times the patient
was confined to defendant's institution and the length of each stay
thereat.

The alleged assailant's institutional file, other than the disciplinary records
treated above, shall be supplied to the Court within 45 days of the date of
service of this decision and order by the Clerk. Upon its review the Court will
determine what portions, if any, are subject to disclosure and will direct that
defendant serve copies of any such materials upon the claimant's attorney.